In recent years, law enforcement across the United States has been warning radical district attorneys and legislators that their bail “reforms” would get people killed. Progressive Milwaukee district attorney John Chisholm has spearheaded efforts to eliminate or substantially reduce bail since he was elected in 2007, even though he agreed with law enforcement that such reforms would result in deaths. “Is there going to be an individual I divert, or I put into treatment program, who’s going to go out and kill somebody? You bet,” Chisholm bluntly stated. “Guaranteed. It’s guaranteed to happen. It does not invalidate the overall approach.”
In 2013, Chisholm had to explain to Milwaukee’s citizens why a drug dealer he let out of jail murdered his girlfriend. Chisholm weathered that storm. Now he has to explain to the world why he let Darrell Brooks out on $1,000 bail after he allegedly ran over his girlfriend with a car. Free to roam, Brooks then mowed down dozens of people at a Christmas parade in Waukesha, killing six, including children.
In its traditional form, bail is an amount of money that a criminal defendant must pay to be released from jail pending trial. Posting some bond gives the defendant an incentive to show up for trial, because the money will be forfeited otherwise. The amount of bail that judges set is usually determined by two factors: the risk of flight by the defendant and the likely danger to the community if the defendant is released. In order to calculate the risk of flight, the court must delve into specifics for each defendant, such as his prior criminal history, prior history of not showing up for court proceedings, employment, family ties, the severity of the crime, the strength of the case against him, and other factors that shape a judgment of whether the defendant is likely to flee or re-offend. Thus, a defendant with no prior criminal record arrested for stealing a car might be released on bail of $100. A defendant with a lengthy criminal record, who previously had failed to appear for court appearances, and is now charged with a rape that was captured on video, might have bail set at $5 million. Some defendants get released on their own recognizance, meaning that they don’t have to post bail. In many states, offenses like first-degree murder make a defendant ineligible for bail.
When you hear that a defendant is sitting in jail merely because he does not have the cash to make bail, consider the example of the charged rapist mentioned above. It’s literally true that he lacks the $5 million in cash for bail, but practically speaking, the judgment of the court is that he should not be released pretrial—hence the high bail amount. (The court may not set the amount at, say, $1 billion in these cases because it would violate the Eighth Amendment’s prohibition against excessive bail.)
Bail reform comes in different shapes and sizes. Some progressives want to abolish cash bail at the same time as abolishing jails and the police. Others want bail applied only in the case of felonies or some other cohort of violent crimes. Still others want bail always to be set at amounts that a defendant can make. A new proposal from a few law professors even suggests that the government should set bail and then subsidize the bail payments.
In New York, Democrats rammed through a bail-reform bill that stripped judges’ ability to require cash bail for certain offenses. Violent crime has risen, particularly in New York City, and many observers point to the reform as a factor. Police and citizens are starting to rethink the wisdom of this movement. New York governor Kathy Hochul is considering scaling back the progressive bail reforms, concerned about the impact of violent crime on the very communities that the measure was supposed to help.
The premise of most bail-reform arguments is that thousands of poor and minority people are wasting away in prison for stealing a pair of socks because they can’t pay a bail of $10,000. This simply isn’t so: the huge majority of people being held in prison on bail are there because they present either a flight risk or a danger to the public. While exceptions exist, the problem here is not with the prosecutors or courts but with defense counsel. If you’re a defense lawyer with a defendant locked up pretrial for a minor crime who is neither a flight risk nor a danger to the community, then it’s your duty as effective counsel to file a bail motion to get that person released.
The bail-reform movement is based on a dishonest premise. Radical prosecutors, progressive politicians, and mainstream media assure the public that almost every defendant can be released on bail without causing an increase in violence. In a triumph of sophistry, some progressives even argue that releasing more people leads to less violence.
The truth is straightforward. If the system lets almost everybody out on bail pending trial, we will see more violence and crime. Most people arrested for violent crimes are guilty of those crimes. Those who have committed violent crimes in the past are likely to commit more violent crimes in the future. Moreover, if defendants know that showing up for a later court hearing is likely to result in their being sent to prison or even being put under supervision, many will never show up for trial. They will make a calculated bet that the same radical prosecutor who pushed for bail reform will declare an amnesty for failure-to-appear arrest warrants. Criminals are not stupid.
The Milwaukee district attorney told the truth when he “guaranteed” that this kind of reform would lead to murder. Woke prosecutors are angry now not because six people are dead and scores more maimed in Waukesha but because one of their own told the truth about the consequences of these policies. And the only safe guarantee going forward is that this type of bail reform—along with de-prosecution, de-carceration, and de-funding of police—will lead to more mayhem. How much more, one wonders, before prosecutors like Chisholm recognize that reality has begun to “invalidate the overall approach”?
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